In Westbury Realty Corp. v. Lancaster Shopping Center, Inc., 396 Pa. 383, 386, 152 A.2d 669, 671 (1959), the plaintiffs filed a suit in equity against defendants, asserting that defendants' actions had caused flooding on plaintiffs' land. The trial court sustained preliminary objections in the nature of a demurrer but gave the plaintiffs 20 days to file an amended complaint that contained allegations of negligence by defendants. The plaintiffs did not file an amended complaint but, rather, appealed. The Supreme Court allowed the appeal, notwithstanding the fact that the order gave plaintiffs the chance to plead over. Id. at 386-387, 152 A.2d at 671. The Supreme Court did so for the reason that the plaintiffs asserted that they could not amend their pleading to comply with the trial court's suggestion. Effectively, then, plaintiffs were out of court on their initial theory of relief.